Vowinckel v. First Federal Trust Co.

• Decision Date: 01 June 1926
• Docket Number: No. 1297.,1297.
• Citation: 15 F.2d 872
• Parties: VOWINCKEL v. FIRST FEDERAL TRUST CO. et al.
• Court: U.S. District Court — Northern District of California

15 F.2d 872 (1926)

VOWINCKEL v. FIRST FEDERAL TRUST CO. et al.

No. 1297.

District Court, N. D. California, S. D.

June 1, 1926.

A. P. Black, of San Francisco, Cal., for plaintiff.

George J. Hatfield, U. S. Atty., and Lucas E. Kilkenny, both of San Francisco, Cal., for defendants.

KERRIGAN, District Judge.

This is a suit under section 9 of the Trading with the Enemy Act (Comp. St. § 3115½e), in which plaintiff seeks the recovery of certain property seized by the Alien Property Custodian in 1917. The allegations of the bill are fully set forth in a recent decision by the Circuit Court of Appeals, which reversed a decree of this court granting a motion to dismiss. Vowinckel v. First Federal Trust Company (C. C. A. 9) 10 F.(2d) 19.

The plaintiff was born in Germany, where he graduated from the University of Berlin and was granted a license to practice medicine. In 1892 he came to the United States and took up a residence in California, where a similar license was granted him, and where for 17 years he had a notable career as chief surgeon of the California Woman's Hospital. After the World War had broken out, he joined the German Red Cross and returned to Germany.

From October 26, 1915, until hostilities had ceased, he was actively engaged as a physician and surgeon in treating, without regard to nationality, flag, or rank, all wounded combatants and civilians who were brought before him. When the war ended, he attempted to return to the United States. It was not, however, until 1922, that he succeeded in obtaining the necessary passport visa. Meanwhile his property, worth in excess of $65,000, had been seized under alleged authority of the Alien Property Law, and was withheld from his possession. He now asks for its restoration.

The defense is that he was an alien enemy when it was seized; more particularly, that he was an "individual * * * resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States was at war." Act Oct. 6, 1917, § 2 (Comp. St. § 3115½aa). But the evidence shows that he had no home in Germany or France during the arduous years which he spent in those countries; that his sleeping quarters were a field tent here, a dug-out there, wherever the Red Cross went among the wounded and the dying; that his trunks remained unpacked throughout the entire period of the war; and that he was treated as a foreigner from the day his field service ended.

The opinion of the Circuit Court of Appeals intimates that plaintiff may, because of his activities in Germany, or because of his relations to the German government, have become an enemy of the United States. This fact was not apparent on the face of the bill, and is in no way supported by the present record. Unless plaintiff actually was a "resident" of territory held by the Central Powers, the judgment must be in his favor.

Defendants argue that, by entering the service of the German army as a Red Cross surgeon, he became an officer of the German government. This contention already has been conclusively answered by the Circuit Court of Appeals:

"While from the necessities of the case Red Cross surgeons, nurses, and chaplains are in the service of the army in time of war, they form no part of the military forces proper, and, as will be seen by reference to the convention to which the United States is a party, they shall be respected and protected under all circumstances; if they fall into the hands of the enemy, they shall not be considered as prisoners of war; they shall continue in the exercise of their functions, under the direction of the enemy, after they have fallen into his power; they shall receive the...